Why Hire an External Investigator?
Complaints of misconduct within an organization can occur at any time - especially in the #MeToo era. There is an increasing movement toward more equitable work environments in which all workers can participate equally and thrive. There is a related increase in scrutiny and accountability for employers who fail to cultivate this type of productive work environment.
There are several reasons why an organization should consider retaining a third-party workplace investigator.
Outside Investigators are Independent Fact Finders
Using an outside investigator indicates that the employer takes allegations of misconduct seriously and wants to find out what really happened in order to maintain an equitable and productive workplace for everyone. An outside investigator is an independent fact-finder who plays no part in discipline or future opportunities for individuals who participated in the investigation. As a result, employees often feel more comfortable sharing all relevant information with an investigator who is outside the company.
Outside Investigators are Free of Actual and Apparent Bias and Conflicts of Interest
An outside investigator wears only one hat – that of a fact-finder. There can be an appearance of bias when an employer uses an investigator who is – or who appears to be – vested in the investigation.
Internal investigators may be susceptible to pressures that arise from their role inside the organization making it difficult for them to be or appear neutral so the facts and circumstances often weigh in favor of hiring an outside investigator.
If the complaining party or the target of the investigation is a member of the HR Department or high in the organizational structure (officer, director, member of the board of directors), and has the ability to affect the investigator’s employment, this creates a conflict of interest and the investigator’s conclusion may be called into question.
An internal investigator may have supervisory authority over an employee being investigated or is in the reporting chain of the person being investigated making it difficult for them to be impartial or appear impartial.
In some cases, employers use an internal investigator who is involved in some way with the incidents being investigated. If the investigator witnessed an incident that is part of the investigation, he or she is now a witness and therefore cannot be an impartial investigator. Conflicts could also arise if the in-house investigator has had a long-term relationship, working or otherwise, with anyone who might be a witness.
Down the road, even the perception of bias can lead to attacks on the validity of the investigation. The investigation must have the credibility and objectivity required to withstand later scrutiny if the matter reaches litigation.
Outside Investigators Can Preserve Attorney Client Privilege
Workplace investigations, when conducted promptly, impartially, and thoroughly, can provide the basis for asserting key defenses to claims like sex harrasment, wrongful termination, discrimination, retaliation and other allegations of misconduct.
However, when an investigation is performed by in-house or outside counsel to the company, a conflict may arise if there is litigation. If the organization wants to use the investigation to show that it did the right thing, it may have to waive the attorney-client privilege with respect to strategic conversations related to the investigation. Using an outside investigator, an investigation can be structured to create a distinct separation between those sensitive discussions from the investigative process, so the privilege can still be preserved. However, should the organization choose to waive the privilege in the future, the investigator can be available to testify at deposition or trial regarding the investigation.
Outside Investigators are Useful in Complex Investigations
Often what starts out as a simple complaint becomes more complicated as allegations are brought to light. A complex investigation can burden a company and keep it from moving forward if the investigation takes over daily work responsibilities and impedes progress with official business. With an outside investigator employees can go about their normal daily roles and not delay the productiveness of the company.
Outside Investigators Have Time to Quickly and Thoroughly Complete the Investigation
Employers should consider the requirement that the investigation be completed in a timely manner. Internal employees already have a job and when they wear 2 hats the investigation can drag on. The internal investigator may not be able to complete the investigation in an acceptable time frame. Employers considering using in house personnel need to be certain that the investigator is competent and has demonstrable training or prior experience in conducting investigations or the investigation can take more time. It is important to get the investigation done expeditiously and thoroughly to preserve evidence and keep morale up and so the company can get back to business.
Outside Investigators are Trained in Evaluating Credibility
It can be very difficult for a person inside an organization to make fair and impartial credibility determinations. Credibility determinations are especially difficult in a “he said/she said” situation. An outside investigator is not tainted with any previous experience with the witnesses and possess the training and skills necessary to make credibility assessments. A third party investigator is better poised to properly determine and document their rationale, and to make a contemporaneous record of the facts and observations, that lead to a decision to either trust or discredit a witness. It is essential for an organization to have defensible reasons for the conclusions that are reached.
Outside Investigators are Trained in Interviewing Witnesses
Outside investigators have training and skills in interviewing witnesses including establishing rapport, making credibility determinations and applying the correct standard of proof.
Outside Investigators Can Help with Technology Related Evidence
Investigations are requiring more and more that the investigator understand the nuances surrounding technology related evidence including, social media evidence, collaboration software and electronically stored information. Most often, an outside investigator has experience in this area or has contacts with reliable consultants with this expertise should the particular circumstances require it.
In the long run, conducting an impartial, fair, timely and thorough workplace investigation can be a very important decision for an organization. It serves to promote a work environment that is most productive for all employees, raises morale and it enables the employer to get back to focusing on organizational goals.